Ophelia Millais’s Techdirt Profile

About Ophelia Millais

Hello, and thanks for reading my profile. This is the only account I use on Techdirt.

Ophelia Millais is just a pseudonym, of course. It's intended to result in your discovery of a beautiful Pre-Raphaelite painting if you do a web search for that pair of words.

I prefer to remain semi-anonymous, mainly out of paranoia. My posts under this name mainly appear in forums devoted to discussion of copyright issues, and I don't want potential employers and business associates, for example, to hold this fact against me or my friends. Also, I don't like to argue from authority; my posts are simply intended to be reasonable arguments and poignant observations, taken at face value and considered on the basis of their content only. My real-life credentials and reputation aren't relevant.

That said, I'll say a few things so that you know where I'm coming from. I'm a musician, DJ, and photographer. My own music has been released commercially on an indie label, and more recently was self-released with Creative Commons licenses. My photography is also permissively licensed (CC0 or CC-BY), and this directly led to one piece being displayed in a popular museum in Berlin.

Although I'm a "creative professional," my art has never come close to supporting me, save for a few DJ gigs in the '90s. Therefore, I work a day job I enjoy, and it doesn't impede my creativity at all. It never occurred to me to be resentful that I don't live off my art, or that some people don't consider my art worth paying for. I have no sympathy for creators who feel otherwise. I only ever feel gratitude toward those who enjoy my work.

Although I tend to be a skeptic of copyright maximalism, I actually have quite mixed feelings about copyright law, file-sharing, the commercialization of art, and the various kinds of entitlement felt by the various competing interests. Generally, though, I'm idealistic in that I hold the principles of freedom and privacy in high regard; if a choice must be made between the businessman's "freedom to profit" (or the artist's legal rights) and the individual liberty and privacy of consumers and the general public, then consumers and the general public should always come out ahead.

Here are a few of my favorite memes:

• It is a well-kept secret* that most artists have sources of income aside from the royalties they receive based on consumers purchasing new copies of their work. Very few enjoy sustained, lifelong success where they live entirely off of such royalties. Those who do achieve such success often don't maintain it for long, at least not without continually creating new works that capture public interest. Yet so many artists, especially when debating file-sharing and copyright, continue to promulgate the myth that they are part of a class which solely subsists on such royalties, and that making art is and must be a full-time job, or else it will cease to exist. Certainly, for a privileged few, it is a profitable, full-time job, and certainly, some artists are only in it for the money. But that's the exception, not the rule. There is no reason that artists must earn a living wage exclusively from copyright exploitation, or that if they ever do reach that point, that they're entitled to remain in that fortunate state. Most are not in that category, and it's disingenuous to imply otherwise.

• Marketing creative works can be very lucrative, but artists and copyright owners are not entitled to earn a living from their works, nor are they entitled to sustain a particular level of earnings. They can try, of course, but there are no guarantees.

• A creative work's monetary value is not conferred by its price tag, nor by the labor and expense that went into it, nor by public interest in it. Monetary value is what each consumer is willing to pay.

• It's not the consumer's responsibility to choose to spend their money only in ways which are assured of sustaining the businesses of those they buy from.

• Shaming consumers for their spending choices is attacking them, and is a business strategy best left to televangelists and other con artists. Even if you are on the moral high ground, you undermine your cause when you resort to such tactics.

* [I was taken to task for characterizing artists' day jobs as "a well-kept secret". I stand by it, though. Copyright advocates repeatedly insist that artists won't create if they have to go get day jobs "to compete with free" when others are "stealing" their work or whatever, when in fact the reality is that most artists already have day jobs they just keep quiet about, lest anyone realize they aren't suffering and aren't entitled to copyright-based welfare.]

* Addendum: When I say as-yet undemonstrated, I mean the RIAA has asserted in their complaint that it's possible to search for plaintiffs' recordings via the site, and that searching the site generally results in links to MP3s as well as playback via an embedded widget, but unless I missed something (maybe I did), they did not actually say that they successfully and routinely were able to use the site to access the specific recordings at issue.

IMHO, without such an assertion, it can't be assumed that users are able to infringe plaintiffs' copyrights for those specific recordings, and thus there should be no finding of secondary infringement by the site's operators.

Looks to me like the RIAA is trying to beef up their arsenal of precedents against search-engine-like sites.

I mean they can't seriously think MP3Skull is a threat to their business. They say it's infringing and causing harm "on a massive scale," but they have no numbers to back that up and don't need any. That's because it's not about MP3Skull or their business model at all. MP3Skull could shut down today and it wouldn't result in any bump in business. Nor does the RIAA want to partner with MP3Skull and get a cut of their ad revenue.

No, they really just want to get a ruling against this type of website; they are seeking a declaration that any site willfully infringes if it is a search engine that provides links to copyrighted content.

One of the things the RIAA is doing here is trying to solidify the concept of secondary, contributory infringementâ€”an emerging doctrine in civil case law which does not require proof of actual infringement by the defendant, but rather just proof that the defendant has a sort of conspiratorial role with the people doing the actual unauthorized copying and distributing. All that needs to be shown is that infringement has occurred as a result of MP3Skull's actions, and that MP3Skull was knowingly facilitating it. In this regard, the case is an easy win for the RIAA, and their complaint is chock-full of evidence against Mp3Skull. MP3Skull uses major-label artists as examples, and instructs & encourages users to work around blocks instituted as a result of takedown notices. The RIAA has already used that kind of "red flag knowledge" of infringement by users to obtain favorable precedents against user-uploaded content services, file-sharing services, and file-sharing software distributors. MP3Skull's smoking guns are in plain sight, no discovery of internal emails needed.

One of the other things the RIAA is doing in this case is much more sinister. In addition to claiming secondary infringement, they are claiming direct infringement. They present absolutely no evidence in support of this, but they are hoping the judge (who I assume they've forum-shopped for) will agree with their claim that MP3Skull's owners "reproduce and distribute unauthorized reproductions" and "engage in unauthorized public performances". This right here is the backdoor SOPA and must not be allowed traction.

Unfortunately, MP3Skull's owners are unlikely to emerge from the shadows to raise a First Amendment defense. I am also wondering if it's reasonable to expect any amicus briefs from companies which now have an "arrangement" with the RIAA, like Google/YouTube, Soundcloud, Spotify, etc. Even if a "hyperlinking is free speech" defense were raised, I wouldn't expect it to succeed in this case, given MP3Skull's public nose-thumbing and their apparent intent to hook people up with any music whatsoever, regardless of whether it can be legally distributed.

I think the best we can hope for is an amicus brief from the EFF in an effort to limit the collateral damage. They should insist that no "plain reading" of the statutes nor circuit precedent supports a finding of direct infringement. And if the court is to find secondary infringement, then it must be expressed in a way that makes it clear that it's contingent upon 1. evidence of direct infringement by MP3Skull users (or at least evidence that such infringement is likely, based on site traffic and an as-yet undemonstrated ability to search for and acquire plaintiffs' recordings via the site); and 2. the egregious infringement-encouraging and facilitating things that MP3Skull did above and beyond mere indexing and hyperlinking.

I wouldn't even consider the companies that do the tracking on behalf of advertisers and the NSA to be necessarily distinct entities. We're talking about fully opaque companies specializing in things like ad placement, analytics, and content/widget hosting. Their resources are embedded in practically every webpage we visit nowadays, and are almost always transmitted unencrypted. I count about 20 unnecessary such hosts embedding resources on this page alone. So how can we see whether any one of these is run by, colluding with, or being snooped on by the NSA or anyone else?

Try getting any these companies to tell you just how they operate, who exactly they share our data with, how secure the data is, and what breaches they've had. Ask them if they're, in any way, in league with the NSA or any other branch of law enforcement. Ask them how many NSLs, subpoenas, and requests they've gotten, and how much data they've disclosed, including inadvertently, to third parties, including government, law enforcement, and unidentified persons.

This is where my mind goes whenever someone suggests that we have nothing to worry about from advertisers tracking us.

Consider linking Like fashion to Johanna Blakeley's 2010 TED Talk on the subject. Short version: trademark protection alone has proven more than sufficient to support a flourishing fashion industry that, economically, dwarfs the entire entertainment industry.

Indeed, I don't see how Boundless Informant is identifying participants or even geolocating with any more precision than any other IP address-based lookup. It seems to be precise only to the country level.

So Emmel didn't lie, considering she qualified her denial of geolocation and identification as being something they can't do with certainty in regard to all parties to a given communication. That leaves quite a bit of wiggle room.

I think most of us can't help but regard a failure to erode the public interest as a win.

The part I find interesting is that it's a case of using a complete work, not just an excerpt or two. It's usually pretty difficult to get a determination of fair use when more than a portion of a work is at issue. In this case, the portion didn't matter, due to the copies being made (a) without intent to compete (b) for their factual rather than expressive content.

The parents and administrators probably still give this security company the benefit of the doubt. It's assumed the scans would only be used for attendance and would only be useful when the child is in school.

They don't even think of things like what could go wrong, how secure is this data being kept, how long do they keep it, what else might be done with it, what if someone uses the data to identify and track the children in places & situations where they (and their parents) expected anonymity, what happens when the company goes out of business or is acquired by a big government/military/law-enforcement contractor, etc.?

Agreed. It's in their interest to conceal the fact that they've declared him an "enemy", the ramifications of which are profound for Assange, Manning, anyone else who has any connection whatsoever with Wikileaks, and anyone who is in a position to leak any U.S. government/military information to anyone, ever.

Are you talking about Patronet, his buggy, overengineered, browser-based content subscription service? That seems to have died on its own, and is more comparable to crowdfunding than Napster. Rundgren was vocally anti-Napster and the like.

If the only people with the ability to develop a test for a deadly virus are so ethically challenged that they need to be "motivated" by a fat monopoly payday, then it's going to take a massive die-off of humankind before people get their priorities straight and realize that just because you can charge for something doesn't mean you should.

That kind of stuff continued through the mid-'80s where I lived. All the students in our (small-ish) high school were on guard for it, too; they even protected, across social and class divides, the kids who were acting out. No one was trying to "terrorize" or "bully" anyone. Everyone eventually grew up and became successful in adulthood; no one had to be taught a lesson or locked up for decades to send a message.

Our yearbook staff conspired to sneak things past the faculty advisor (or so we thought, who knows what she really knew), writing risqué captions, creating fake students, swapping in embarrassing photos of kids doing things they weren't supposed to be doing ... it was all just silly fun. Now it would be "bullying" and someone have to pay with a felony record, I guess.

As you said, they are in a public place. It would be improper to broadcast any footage disclosing the identities of the civilians, but I'm not sure the act of filming them can be said to be an invasion of privacy, even if they don't want cameras on them. And we've already established that cops don't have the right to privacy in these situations.

What I see is basically what I said in my previous comment: the post is merely a relayed report about an IP-maximalist organization spreading baseless FUD and employing faulty reasoning for upholding the status quo, to the detriment of the disabled. And that's not even Mike's assessment; KEI blogger Jamie Love is who ascertained these things. Mike's contribution, besides the secondary report, is really just the addition of his "see? yet more evidence of..." reaction.

I suppose his posting it here can be interpreted as an attempt to discredit someone, although "copyright holders" is a bit broad, since that's basically everyone who has ever authored anything. Rather, it's discrediting this particular business lobbying group, based on something they're actually doing. What more do you want?

You want to have a conversation based on the merits of your post, yet your post is pure ad hominem.

the folks on TD who can't stand it when their leader is challenged

Like any blog, this one attracts more than its share of readers whose opinions are aligned with those of its contributors. And like most popular blogs, the writers know their audience, and both consciously and subconsciously write for it.

Yet, for some reason, you envision Techdirt readers as an obedient, unthinking cult, hanging on Masnick's every word and regarding him as their "leader". You regard all the readers - except those agree with you, I bet - as unable to formulate positions and arguments on their own, unwilling to see that his posts are mainly griping and shit-stirring.

Like I said, he knows his audience - he can certainly whip us up into a pissed-off comment frenzy - but we know him, as well. You guys keep trying to point out to us what's really going on, not realizing that we already know, and it doesn't matter, because most of the time, he's not saying anything we don't already agree with.

Mike and his guest bloggers just relay reports of outrageous things that the IP industry is up to, and they often express their opinions about it, and we all chime in with ours. It's as simple as that. He doesn't have us under mind control. He's not our "leader". One misstep and we'll turn on him...for that one post, which is how it should be.

This "leader" fixation is a generational thing. Mike's generation, the Gen Xers, distrust power and leaders in general, starting with their parents. The younger Millennials laugh at would-be leaders and rarely conflate celebrity with authority. But the older generation, the Baby Boomers - good god, they revere and exalt as ideologues anyone who's got anyone's attention, and can't comprehend the idea that everyone must be following someone. Of course there are exceptions to these trends, but I'm guessing you're in this camp, born before the 1970s. Am I right?